Irish Court of Criminal Appeal

You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- Martin Joseph Sweeney & Michael Sweeney [2007] IECCA 44 (16 May 2007)
URL: http://www.bailii.org/ie/cases/IECCA/2007/C44.html
Cite as: [2007] IECCA 44

[New search] [Help]

Judgment Title: D.P.P.-v- Martin Joseph Sweeney & Michael Sweeney

Neutral Citation: [2007] IECCA 44

Court of Criminal Appeal Record Number: 108/06 & 114/06

Date of Delivery: 16 May 2007

Court: Court of Criminal Appeal

Composition of Court: Denham J., Mac Menamin J., Feeney J.

Judgment by: Denham J.

Status of Judgment: Approved


Judgments by	Result
Denham J.	Refuse application - to state reasons

Outcome: Refuse application - to state reasons

- 9 -

COURT OF CRIMINAL APPEAL

[C.C.A. No: 108 of 2006]
[C.C.A. No: 114 of 2006]

Denham J.
MacMenamin J.
Feeney J.

Between/

The People at the suit of the Director of Public Prosecutions

Prosecutor

and

Martin Joseph Sweeney
and Michael Sweeney

Applicants

Judgment of the Court delivered on the 16th day of May 2007 by Denham J.

1. This matter came on for hearing before the Court on the 16th March, 2007. At the conclusion of the submissions the Court indicated that it would dismiss the applications for leave to appeal against the convictions and that it would give its reasons at a later date. This judgment sets out the reasons for the decision.
2. Martin Joseph Sweeney and Michael Sweeney, the applicants, hereinafter referred to as 'the applicants', have applied for leave to appeal against their convictions for criminal damage on 31st May, 2006 at Sligo Circuit (Criminal) Court.
3. The applicants were charged with two offences, criminal damage and violent disorder. The applicants were each before the trial court on two counts:-

Martin Sweeney was charged with the following offences:

COUNT NO. 3

STATEMENT OF OFFENCE

Violent Disorder contrary to Section 15 of the Criminal Justice (Public Order) Act, 1994.

PARTICULARS OF OFFENCE

MARTIN SWEENEY

on Sunday the 25 June 2004 at Temple Street Sligo, within the County of Sligo, committed violent disorder in that you with other persons, namely Tom Sweeney, David Sweeney and Michael Sweeney present together used or threatened to use unlawful violence and such conduct, taken together, was such as would cause a person of reasonable firmness present at said place to fear for his or another persons safety.

COUNT NO. 4

STATEMENT OF OFFENCE

Damaging property contrary to Section 2 of the Criminal Damage Act, 1991.

PARTICULARS OF OFFENCE

MARTIN SWEENEY

on Sunday the 25 June 2004 at Temple Street, Sligo, within the County of Sligo, without lawful excuse damage property, to wit, a red Opel Corsa Registration Number 96-D-41430 in the amount of €2,932.69 belonging to Edward McDonagh intending to damage such property or being reckless as to whether such property could be damaged.

Michael Sweeney was charged with the following offences:

COUNT NO. 5

STATEMENT OF OFFENCE

Violent Disorder contrary to Section 15 of the Criminal Justice (Public Order) Act, 1994.

PARTICULARS OF OFFENCE

MICHAEL SWEENEY

on Sunday the 25 June 2004 at Temple Street Sligo, within the Country of Sligo, committed violent disorder in that you with other persons, namely Tom Sweeney, Martin Sweeney and David Sweeney present together, used or threatened to use unlawful violence and such conduct, taken together, was such as would cause a person of reasonable firmness present at said place to fear for his or another persons safety.

COUNT NO. 6

STATEMENT OF OFFENCE

Damaging property contrary to Section 2 of the Criminal Damage Act, 1991.

PARTICULARS OF OFFENCE

MICHAEL SWEENEY

on Sunday 25 June 2004 at Temple Street, Sligo, within the Country of Sligo, without lawful excuse damage property, to wit, a red Opel Corsa Registration Number 96-D-41430 in the amount of €2,932.69 belonging to Edward McDonagh intending to damage such property or being reckless as to whether such property would be damaged.

4. The prosecution case against the applicants was that they, together with David and Thomas Sweeney, participated in a violent attack on a motor car and its occupants. The applicants and David and Thomas Sweeney were charged with the offences of violent disorder and criminal damage. David and Thomas Sweeney pleaded guilty to the charge of violent disorder. The Director of Public Prosecutions subsequently entered a nolle prosequi in respect of the charge of criminal damage against those two co-accused.
5. Jury verdict
In relation to these applicants, after a trial, the jury returned a verdict of not guilty to the offence of violent disorder and guilty to the offence of criminal damage.
6. Submissions
On behalf of the applicants it was submitted that the verdicts were inconsistent. It was submitted that on the facts these were not alternative counts, that the evidence supporting each count was effectively the same, save that in relation to the violent disorder there was evidence of physical threats to the witness, Mary Sweeney. Reference was made to a statement of the trial judge at the sentence hearing that 'in effect the violent disorder was the criminal damage'. It was submitted that it was logically impossible for the jury to have reached the decision that they did. It was submitted that the decision was one which no reasonable jury, properly applying itself to the facts, could have reached. It was argued that in order to reach the verdict of not guilty of violent disorder the jury must have concluded that the applicants were not guilty of participation in the criminal damage or the threats to Mary Sweeney, it having been the prosecution case that the nature of the attack on the car was such as to amount to violent disorder.
It was submitted further that as two of the applicants' co-accused, David and Thomas Sweeney, had pleaded guilty to the charge of violent disorder, the only issue for the jury to consider in relation to both charges against these applicants was whether or not they participated in the attack on the car. It was submitted that if the applicants did participate then they were guilty of both counts, and if they did not participate then they were not guilty of either offence. The case was advanced that it was logically impossible for the jury to have reached the decision that they did, that it was a decision no reasonable jury could have reached.
The applicants relied on Director of Public Prosecutions v. Maughan [1995] 1 I.R. 304 as authority for the proposition that an inconsistent jury verdict should be set aside where it is established that no reasonable jury could properly have reached that verdict.
7. Decision
The Court does not find any assistance in the position of David and Thomas Sweeney. Theirs was an entirely different situation, involving, as it does, a plea on behalf of each of those accused to one offence, that of violent disorder, and a nolle prosequi, by the Director of Public Prosecutions, in relation to the offence of criminal damage.
The decision in this case rests upon the position of the applicants. They did not plead guilty. There was a trial and the jury considered the facts and reached a verdict. The jury found both applicants not guilty of the offence of violent disorder but guilty of the offence of criminal damage. The jury determined the facts and guilt in both of the cases. A court of appeal is slow to intervene in such a situation - an area quintessentially for the jury.
The applicants have submitted that the decision of the jury was inconsistent and reliance was placed on Director of Public Prosecutions v. Maughan. However, the facts of that case were entirely different. In that case two men armed with knives broke into a house, they bound and gagged the occupant and left with property, including a bottle of brandy. Shortly after, the applicant was arrested nearby when he had in his possession the bottle of brandy and a piece of glass which had been broken from a chandelier in the house. The accused was tried and convicted in the Circuit Criminal Court on three counts; aggravated burglary, false imprisonment and handling stolen property. He was sentenced to concurrent terms of five and a half years imprisonment on each of the first two counts. The accused appealed to this Court, arguing that the verdict of guilty in respect of the first two counts was inconsistent with the verdict of guilty in respect of the third count, that the trial judge had directed the jury that the third count was an alternative to the first two counts. Accordingly he applied to have the convictions quashed. This Court held (in a judgment delivered by Blayney J.) that where there is an inconsistency between verdicts, an appellate court may only intervene to quash a conviction where the appellant establishes that no reasonable jury could properly have reached the verdicts that it did. In that case the trial judge had clearly directed the jury that the charge of handling stolen property was an alternative to the charges of burglary and false imprisonment; accordingly no reasonable jury which had applied its mind properly to the facts of the case could have convicted the accused of all three counts.
The situation in this case is entirely different to that in Director of Public Prosecutions v. Maughan where the counts were alternatives, where the accused either robbed the goods, or had possession of them after the event handling them as stolen goods. In this case the charges are not alternatives. The trial judge did not direct that they were. The words ('in effect the violent disorder was the criminal damage') referred to by counsel on behalf of the applicants were said by the trial judge at the sentencing stage, and are not of assistance to the applicants' case in law.
The charges in this case were of violent disorder and criminal damage. The offence of violent disorder is described in s. 15(1) of the Criminal Justice (Public Order) Act, 1994, as:-

"Where -

(a) three or more persons who are present together at any place (whether that place is a public place or a private place or both) use or threaten to use unlawful violence, and

(b) the conduct of those persons, taken together, is such as would cause a person of reasonable firmness present at that place to fear for his or another person's safety,

then, each of the persons using or threatening to use unlawful violence shall be guilty of the offence of violent disorder."

This is an offence which is rather similar to, but less than, a riot, only three persons need to be present, and there is no requirement of a common purpose. The mens rea required is that ...

"...the person intends to use or threatens to use violence or is aware that his conduct may be violent or threaten violence."

On the other hand, the offence of criminal damage is defined in the Criminal Damage Act, 1991, which followed advices of the Law Reform Commission. Section 2(1) created the offence in issue, as follows:

"A person who without lawful excuse damages any property belonging to another intending to damage any such property or being reckless as to whether any such property would be damaged shall be guilty of an offence."

This offence occurs when an accused acts without lawful excuse. The accused must act with intent to cause damage to property or be reckless as to whether property would be damaged.
Thus the ingredients of each of these offences are different, and they are not alternatives, such as robbery or receiving. These counts not being alternatives the law as expressed in Director of Public Prosecutions v. Maughan is not of assistance.
In this case Mr. McDonagh and Ms. Sweeney were driving their car in Sligo. Traffic was heavy and they were stationary. A car being driven in the opposite direction stopped and four occupants got out of the car and attacked Mr. McDonagh and Ms. Sweeney and their car. The applicants were identified as being among the attackers. The car was damaged.
To establish an inconsistent verdict by a jury there is a heavy burden on the applicants. In Ryan & Magee "The Irish Criminal Process", at p. 374, it is stated:-

"If the verdict appears to be inconsistent, the onus of establishing that lies on the defence, but an apparently inconsistent verdict does not necessarily mean that it cannot stand; every case must depend on its own facts."

The Court was referred to a statement of law in Blackstone's Criminal Practice (2007 ed.) at p. 1706, where it is stated:-

Inconsistency in the verdict.

If the individual verdicts on a number of counts or in respect of several accused are - having regard to the nature of the evidence that has been adduced - inconsistent with each other, then the judge may ask the jury to reconsider their decision. He should only do so, however, if the verdicts are

necessarily

inconsistent. If there is a possible, albeit unlikely, view of the evidence on which the verdicts can be justified, the judge, should accept them without further query."

The Court would adopt and apply these principles. The Court would be slow to intervene with the verdict of a jury on the basis of an inconsistent verdict. Indeed, it would be appropriate to intervene only where there are manifest inconsistencies, in other words if the verdicts were necessarily inconsistent.
In this case there was evidence before the trial court that four men got out of a car, that the car of Mr. McDonagh and Ms. Sweeney was damaged, and that at least one person pursued Ms. Sweeney down the street.
It was quintessentially a matter of fact to be determined by the jury. It was for the jury, on hearing the evidence, to accept or reject evidence as to facts, as to what had happened. On the facts it would be pure speculation to intervene in the jury decision. There is no manifest inconsistency in the convictions. The Court is being asked to find that the jury verdicts were necessarily inconsistent. However, it was open to the jury to have regard to and determine the sequence of events. Indeed, this may be regarded as an example of a perspicacious jury giving a just decision. On the facts of the case it could not be held that no reasonable jury could come to this decision. The applicants have failed to establish that no reasonable jury could properly have reached the verdict that it did. Inconsistent verdicts only arise if verdicts are necessarily inconsistent. If there is a possibility, even if it is an unlikely view of the evidence on which the verdict can be justified, the court should accept it. Given the different constituents of the two offences, and the particular facts of the case, in all the circumstances the Court would not intervene in the convictions.
Taking the applications for leave to appeal as the hearing of the appeals, the Court would dismiss the appeals as to the convictions of the applicants.